“Geographic Proximity Alone Does Not Equal ‘Substantial Control’” – The Fourth Circuit Narrows Title IX Liability for Off-Campus Misconduct

Introduction

In Jane Roe v. Marshall University Board of Governors, No. 24-1669 (4th Cir. 2025), the United States Court of Appeals for the Fourth Circuit revisited the outer limits of institutional liability under Title IX when sexual misconduct occurs off-campus. Jane Roe, a Marshall University student, alleged that the University’s response to her off-campus sexual assault and its decision to discipline her for under-age drinking amounted to (1) deliberate indifference and (2) retaliation in violation of Title IX.

The central question was whether the University exercised “substantial control” over the assailant and the context of the assault, a prerequisite for institutional liability first articulated by the Supreme Court in Davis v. Monroe County Board of Education. The Fourth Circuit affirmed summary judgment for Marshall University, holding that an assault at a private residence near campus, unaffiliated with any University program or organization, did not satisfy the control requirement. It further held that the student’s discipline for under-age drinking—based on her own admission—did not constitute unlawful retaliation.

Summary of the Judgment

Deliberate Indifference Claim: To impose Title IX liability, a university must have substantial control over the harasser and the environment where the harassment occurred. Because the assault happened at a private, non-University residence, Marshall had neither anticipated nor controlled the setting. Geographic proximity, standing alone, is insufficient to establish control.
Retaliation Claim: Applying the McDonnell Douglas burden-shifting framework, the Court found Roe could not show that Marshall’s stated reason for disciplining her—her admitted violation of the Student Code’s under-age drinking provision—was pretext for retaliation.
Outcome: The Court unanimously affirmed the district court’s grant of summary judgment to the University. Judge Quattlebaum concurred in the judgment but wrote separately to express skepticism about mechanical use of McDonnell Douglas.

Analysis

Precedents Cited

Davis v. Monroe County Board of Education, 526 U.S. 629 (1999) – Established that a school is liable only when it exercises substantial control over both the harasser and the context.
Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005) – Recognized retaliation as a form of sex discrimination under Title IX.
Feminist Majority Foundation v. Hurley, 911 F.3d 674 (4th Cir. 2018) – Allowed liability where harassment emanated from on-campus or university-controlled online spaces.
Brown v. Arizona, 82 F.4th 863 (9th Cir. 2023) (en banc) – Emphasized that control can exist off-campus if the university regulates the location (athlete housing, team supervision).
Other Circuits: Simpson v. Univ. of Colorado Boulder, Roe v. St. Louis Univ., Pahssen v. Merrill Cmtʏ. Sch. Dist. – Provide contrasting examples where control was or was not present.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) – Framework for indirect proof of discriminatory retaliation, imported into Title IX jurisprudence.

Legal Reasoning

1. Substantial Control Requirement. The Court underscored that control must be both over the perpetrator and the location. It dissected Roe’s argument that proximity to campus satisfies control, rejecting it as conflating location with authority. Citing Hurley, the panel distinguished cases where technology or campus resources extended institutional influence. Here, the University neither owned nor supervised the house party; no student organization was involved; no University funds were used; and Marshall had no prior notice to intervene.

2. Retaliation Analysis. Without direct evidence, the panel used the three-step McDonnell Douglas test:

Prima facie case: Roe engaged in protected activity (reporting assault) and experienced adverse action (discipline).
Legitimate reason: Marshall cited the undisputed Student Code violation—Roe’s own admission of under-age alcohol consumption.
Pretext: Roe pointed to timing, alleged procedural deviations, and an absence of an “amnesty” policy. The Court found these insufficient because (a) Roe declined to identify other partygoers, impeding comparative analysis, (b) Roe had never requested supportive measures, and (c) the University’s response was facially neutral and consistent with its Code.

3. Concurring Opinion. Judge Quattlebaum agreed on the outcome but questioned the pervasive use of McDonnell Douglas, echoing recent Supreme Court commentary suggesting courts should simply ask whether a reasonable jury could find intentional discrimination, without over-focusing on burden-shifting mechanics.

Impact

Narrowed Liability Window: Institutions within the Fourth Circuit now have clearer assurance that mere nearness to campus does not create Title IX liability. Plaintiffs must show the university’s regulatory reach or sponsorship over the site of misconduct.
Compliance Strategies: Universities may feel less compelled to initiate Title IX proceedings for entirely private, off-campus events, but they must still assess whether any university-controlled element is present (e.g., athletic programs, study-abroad housing, Greek-affiliated houses).
Retaliation Claims Remain Viable—but Stringent: Disciplinary measures will be scrutinized. Institutions should document non-retaliatory grounds and ensure consistent treatment of similarly situated students.
Procedural Debate on McDonnell Douglas: The concurrence adds to a growing judicial dialogue that the burden-shifting algorithm, while useful, should not eclipse the ultimate factual question. Future litigants may cite this to argue for streamlined summary-judgment assessments.

Complex Concepts Simplified

Deliberate Indifference: A school’s deliberate indifference exists when its response (or lack thereof) to known sexual harassment is clearly unreasonable in light of known circumstances. But liability also requires “substantial control.”
Substantial Control: Think of control as “power to prevent or police.” Owning the property, providing staff supervision, or embedding the event in an official program usually indicates control.
Retaliation: Punishing someone for reporting misconduct. Under Title IX, retaliation is itself sex discrimination.
McDonnell Douglas Framework: A three-step evidentiary shortcut: (1) plaintiff sets out basic facts suggesting discrimination, (2) defendant offers a non-discriminatory reason, (3) plaintiff shows that reason is likely a cover-up (pretext).
No-Contact Order: A directive that two students have no physical or electronic contact; often the first “supportive measure” after an assault allegation.

Conclusion

Jane Roe v. Marshall University Board of Governors fortifies an important boundary in Title IX jurisprudence: universities are not automatically answerable for every off-campus wrong perpetrated by their students. Plaintiffs must tie the misconduct to a context the institution substantially controls. The decision also signals that retaliation claims will fail absent clear evidence undermining a school’s neutral rationale. Finally, Judge Quattlebaum’s concurrence adds momentum to judicial re-examination of the ubiquitous McDonnell Douglas paradigm, encouraging courts to focus squarely on the ultimate question—did intentional discrimination occur?

As campus-related sexual-misconduct litigation continues to test the scope of Title IX, this Fourth Circuit ruling provides a pragmatic, control-based template likely to influence both university compliance offices and courts nationwide.